June 26, 2005

In comments to the previous post, two readers, both of whom opposed the adoption of the Flag Desecration Amendment, nevertheless posed interesting questions concerning the issue of “expressive conduct”:

If one rationalizes to the extent that flag burning is protected by that first amendment (free speech), [o]ne could use the same reasoning to conclude that a political assassination is also a first amendment right.

[W]ould splashing a lot of gasoline around onto people threatening to burn a flag be considered “conduct” or “speech”?

A political assassination would constitute murder under applicable state law. Similarly, throwing gasoline on people with the intent of incinerating them (albeit, ultimately brought on by their own despicable act), would violate any number of criminal statutes, depending on the circumstances and the outcome of the act.

I believe that this issue would be controlled by United States v. O’Brien, 391 U.S. 367 (1968) in which the Supreme Court ruled, “When ‘speech’ and ‘nonspeech’ elements are combined in the same course of conduct, a sufficiently important governmental interest in regulating the nonspeech element can justify incidental limitations on First Amendment freedoms.” 391 U.S. 367 at 376.

Assuming that political assassination or throwing gasoline on people threatening to burn the flag each contains both “speech” and “nonspeech” elements (and I think it is fair to say that each does), the state clearly has an important interest in punishing murder and other conduct likely to result in death or serious injury (i.e. the “nonspeech” elements). As such, it can justifiably limit the “speech” elements that are incidental to the acts themselves.

Truth is, I agree with sentiment expressed or suggested by several readers that the real tragedy with this issue is that it has occupied so much time and attention, particularly at a time when we all have much more important things to worry about.

As much as I hate to see people burning the flag as a form of protest, what the hell was I doing in the Navy, if not protecting their freedom to do that very thing? If SOME people aren’t free to do things that other people may not like, then don’t ALL of us suffer the loss of a little of OUR freedom?